[2025:RJ-JP:40006] (1 of 8) [CRLMB-10176/2025] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc. 2nd Bail Application No. 10176/2025 Kalu Singh S/o Bhagwan Singh, Aged About 29 Years, R/o Kajikhedi Tehsil Mahidpur District Ujjain M.P. (At Present Confined At Central Jail Kota) ----Petitioner Versus CBN, Jaipur ----Respondent Connected With S.B. Criminal Misc. 2nd Bail Application No. 10961/2025 Rajendra Singh S/o Mohan Singh, Aged About 26 Years, R/o Gram Lambikhedi, Post Ghosla, Tehsil Mahidpur, District Ujjain (M.P.) (Presently Confined In Central Jail At Kota). ----Petitioner Versus Central Bureau Narcotics (CBN), Through Special PP ----Respondent For Petitioner(s) : Mr. Abdul Kalam Khan Mr. Sanjay Gurjar Mr. Rajendra Singh Tanwar For Respondent(s) : Mr. Tej Prakash Sharma, Special PP (for CBN) HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 11/09/2025 1. These second applications for bail found under Section 483 BNSS have been filed on behalf of the petitioners who are in custody since 30.01.2024 in connection with FIR No.01/2024 registered at Police Station Central Bureau Narcotic, District Kota for offence under Section 8/15(C) of the NDPS Act. Later on, offences under Sections 8/15(C), 25, 29 and 27(A) of NDPS Act have also been added. 2. The first bail applications filed on behalf of the petitioners were dismissed as withdrawn by this Court vide [2025:RJ-JP:40006] (2 of 8) [CRLMB-10176/2025] order dated 12.12.2024 while giving liberty to renew the prayer for bail after recording testimony of seizure officer. Now, seizure officer has been examined during the course of trial thus, these second bail applications have been preferred. 3. Learned counsel for the petitioners contend that the petitioners have falsely been implicated in this case. It is submitted that petitioners are in custody since 30.01.2024 and as such, they have suffered incarceration of about 19 months. It is submitted that provisions of Section 42 of NDPS Act have not been complied with properly. Section 42 provides for power of a police officer of making entry, search, seizure and arrest without warrant or authorisation in any building, conveyance or enclosed place between sunrise and sunset, provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. The police officer may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he has to forthwith send a copy thereof to his immediate official superior. It is submitted that in this case, search has been effected between the sunset and sunrise on the basis of prior information therefore, it was incumbent upon the officer to follow the provisions of NDPS Act but admittedly, no memo in terms of Section 42 of NDPS Act was prepared by seizure [2025:RJ-JP:40006] (3 of 8) [CRLMB-10176/2025] officer regarding the reasons effecting the search between sunset and sunrise. Reliance has been placed upon the judgment passed by Hon’ble Apex Court in the case of State of Orissa vs. Laxman Jena, reported in 2009 Vol.16 SCC 332. 4. Learned counsel for the petitioners submit that it is an admitted case of prosecution that vehicle of the petitioners was intercepted on 30.01.2024 at 4.10 a.m. on public road on the basis of prior information but instead of making such a seizure at the place of interception, vehicle in question was brought to the office of District Opium Officer, Kota wherein entire memos, i.e., seizure, notices, arrests, search and recovery memos were prepared. It is submitted that taking of the vehicle and the accused from the crime scene to the office of District Opium Officer and then preparation of memos within the office of DOO, Kota, as per their convenience has lost the sanctity of the search and seizure. It is contended that law requires that if certain thing is recovered at a particular place on the given time then the memos should be prepared at the same place in the presence of witnesses and accused. It is submitted that in the present case, there was no extraordinary circumstance available with the seizure officer to make search and seizure at any other place. It is argued that this issue was considered by Co- ordinate Bench of this Court in S.B. Criminal Misc. Bail Application No.11544/2023 titled as Kamlesh Kumar vs. Union of India decided on 30.10.2023. The relevant part is reproduced as under:- [2025:RJ-JP:40006] (4 of 8) [CRLMB-10176/2025] “5. Have considered the submissions made by both the parties and have perused the material available on record. The circumstances created by the Police team in this matter brings the recovery into doubt. The statement of the seizing officer recorded under Section 164 of Cr.P.C. reveals that the process of seizure was conducted at the Office of Superintendent CBN, Neemach instead of the place where the recovery took place and the same is corroborated by the Panchnama Japti. He submits that the sanctity of the seizure made in the premises of Police Station is highly doubtful and no explanation furnished by the team members as to why the search and seizure was not made at the place where the vehicle was intercepted. It is not comprehensible as to what was the need to conduct the seizure at a place located 20-25 kms away from the place where the vehicle was intercepted; that too, at the premises of Office of Superintendent CBN, Neemach and no reasonable explanation has been furnished for the same. When the actual recovery had already been made and search and seizure had already been conducted at the shop and warehouse of the petitioner beforehand, then why was the memo regarding the same prepared after a significant period of time had passed at another place(CBN, Neemach) making it seem as if seizure/recovery memo can be prepared as a paper formality whenever it is convenient when the actual, physical recovery had been made at a different place, thus, watering down the sanctity of seizure/recovery memo.” 5. Learned counsel submits that petitioners have already suffered incarceration of more than 19 months and Hon’ble Supreme Court has taken the view in the matter of Devendra Kumar Mishra @ Bade Guru vs. The State of Madhya Pradesh in Special Leave to Appeal (Crl.) [2025:RJ-JP:40006] (5 of 8) [CRLMB-10176/2025] No.14639/2023 that on the ground of period of incarceration suffered by accused, bail application under the NDPS Act can be considered for grant. Further reliance has been placed upon the judgment of Hon’ble Supreme Court in the case of Shambhulal Gurjar @ Rohit vs. State of Rajasthan in Special Leave to Appeal (Crl.) No.16671/2024 wherein after taking note of the fact that three other cases under the NDPS Act have been registered against the petitioner, facility of bail was granted to the accused considering the period of incarceration. It is submitted that petitioners have no criminal antecedents and they are ready to abide by all such conditions which may be imposed by this Court. It is submitted that surprisingly in this case, when information about contraband was received in Mandsaur (M.P.), normally the information should have been based to the Bureau Officials present in Kota (Rajasthan) but the officer present in Mandsaur, who is receiver of the information regarding transportation of contraband has stated that he travelled 205 kms to intercept the vehicles of the petitioners and after reaching Kota, contraband was recovered from the vehicle of the petitioners, which makes the prosecution story doubtful. 6. Per contra, learned counsel appearing for CBN opposes the bail applications and submits that huge quantity of the contraband has been recovered in the case and therefore, considering the rigour of Section 37 of the NDPS Act, bail should not be granted to the accused petitioners. He further [2025:RJ-JP:40006] (6 of 8) [CRLMB-10176/2025] submits that seizure officer as already been examined and trial court has tried to conclude the trial at earliest. 7. I have heard and considered the submissions advanced by counsel for the petitioners as well as learned Public Prosecutor and perused the material available on record. 8. Section 37 of the NDPS Act does not create an absolute embargo for grant of bail. Further, while considering an application for grant of bail, it is not required for the Court to record positive finding that the accused is not guilty. The only requirement of law is that the Court would look at the material in a broad manner and reasonably see whether the accused's guilt may be proved. The satisfaction which courts are expected to record i.e, the accused may not be guilty is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the material collected during investigation. 9. Having regard to the totality of the facts and circumstances of the case; considering the arguments advanced by learned counsel for the parties, especially considering the observations made by Hon’ble Apex Court in several judgments wherein considering the period of incarceration suffered by the accused, facility of bail has been granted, as also considering the fact that petitioners are languishing in jail since 30.01.2024, there are no criminal antecedents against the petitioners and considering the lacunae in the present case pointed out by learned counsel for the petitioners and trial will take considerable time in its conclusion, but without commenting anything on the [2025:RJ-JP:40006] (7 of 8) [CRLMB-10176/2025] merits/demerits of the case, I deem it fit and proper to allow these bail applications. 10. Thus, these second bail applications are allowed and it is directed that accused petitioners (1) Kalu Singh S/o Bhagwan Singh and (2) Rajendra Singh S/o Mohan Singh, arrested in connection with FIR No. 01/2024 registered at Police Station Central Bureau Narcotic, District Kota shall be released on bail provided each of them furnishes a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) together with two sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each to the satisfaction of the learned trial court with the stipulation that each of them shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so. 11. 11. It is made clear that the petitioners shall not involve in any other similar offence during currency of the bail. They shall mark their presence in the concerned police station on first monday of every month till currency of trial. It is further directed that petitioners shall share their mobile numbers (in use) to the trial court and Investigating Agency and they shall not switch off their phones for longer period. 12. Concerned SHO is directed to maintain a register recording the attendance of the petitioners, as directed above. In case the petitioners fail to mark their presence in the concerned police station, as directed above, the concerned SHO is directed to immediately report the matter to the concerned Court in this regard. [2025:RJ-JP:40006] (8 of 8) [CRLMB-10176/2025] 13. Office is directed to send a copy of this order to the concerned SHO for necessary compliance. 14. If any breach of these conditions is reported or come to the notice of the Court, the same shall alone be a reason for the trial Court to cancel the bail granted to them by this Court. 15. The observations made hereinabove are only for decision of these bail applications and would not have any impact on the trial of the case in any manner. (ANIL KUMAR UPMAN),J CHARU SONI /35-36